Greater Miami Society of Human Resources

Practical Tips to Comply with the FMLA, ADA and Other Leave Laws

Presented by: David E. Block, Esquire

Jackson Lewis LLP2 South Biscayne Blvd., #3500

Miami, Florida 33131(305) 577-7600

THE FMLA

• Who is covered?

• When are employees entitled to leave?

• What do they get?

• How do you comply with the FMLA?

• What happens if we don’t get it right?

Who Is Covered?

Employers with 50 or more employees,

but what about:

• Part-Timers

• Seasonal

• Temps

Who Is Covered?

For an employee to be eligible for FMLA, he/she must have:

• 12 months of service;

• 1250 hours; and

• 50 employees within a 75 mile radius

When are Employees Entitled to FMLA?

• Birth, adoption and foster care placement

“BAF” and …

When are Employees Entitled to FMLA?

• Serious Health Condition

“SHC”

When are Employees Entitled to FMLA?

• SHC of a covered relation

• SHC of the employee

When are Employees Entitled to FMLA?

•Covered Relations–Spouse

–Parent

–Child

–Grandparent (Miami-Dade only)

When are Employees Entitled to FMLA?

• Spouse–Common law spouse?

–Same sex marriage?

When are Employees Entitled to FMLA?

• Parent–In Loco Parentis

When are Employees Entitled to FMLA?

• Children–Under 18 years of age

–Over 18 years of age

+ incapable of self-care

When are Employees Covered?

• SHC– “Needed to care for” includes

psychological care and comfort

When are Employees Covered?

• Serious Health Condition– Overnight stay in

hospital,

hospice or residential care facility;

– Pregnancy

Serious Health Condition

• More than 3 days absent and continuing treatment by a Health Care Provider (HCP) or provider of health care services

Serious Health Condition

• Continuing Treatment–2 visits–1 visit and a continuing regimen

of treatment–No visits - a chronic long term

condition (e.g.: migraines, asthma, etc…)

Who is a Health Care Provider?

• Physicians, including:– Doctor of Medicine– Doctor of Osteopathy– Podiatrist– Dentist– Clinical psychologist– Optometrist

Who is a Health Care Provider?

• What about chiropractors?

–Limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist

Who is a Health Care Provider?

• Other Health Care Providers:

–Nurse practitioners

–Nurse-midwives

THIS IS THE UNIVERSE

FMLA

FMLA

ADA

FMLA

ADA

WC

FMLA

ADA

WC

STD

The Case of the IngrownToe Nail

What Do You Get?

• Time Off

• Reinstatement

• Continued Medical Insurance

• No Retaliation

What Do You Get?

• 12 Weeks of Leave in a 12 month period–Calendar Year–Fixed “Leave Year”–Forward Method–Rolling 12-month period (“look-back method”)

What Do You Get?

Calendar Year vs.

• October ’04

• November ’04

• December ’04

• January ’05

• February ’05

• March ‘05

Rolling Year• February ’05

• June ’05

• October ‘05

What Do You Get?

• Intermittent Leave–Only for SHC (de minimus BAF exception)

–Every Friday Off!

–5 days/week x 12 weeks = 60 days

–3 days/week x 12 weeks = 36 days

What Do You Get?• What are the odds of having to take every

Friday off?

1/7n

• For example, the odds of taking seven Fridays in a row are:

1/77 = 1:823,543

What Do You Get?

• Reduced Leave–How low can you go?

- ½ Day

- 1 Hour

- 15 Minutes

What Do You Get?

• Spouses at the same employer

–Aggregate time, except:

–SHC of employee; or

–to care for sick parent

What Do You Get?

• Take a leave…

forever? …No

• Reinstatement

What Do You Get?

• Reinstatement into the same or an equivalent job

What Do You Get?

• How equivalent?…Same pay…Same benefits…Same shift…Same opportunity for overtime,

advancement, etc.…Equivalent commute time…Same boss…No

What Do You Get?

• Continued medical insurance on the same basis as if the employee continued to be employed

… How does the employee pay his/her portion of the premium?

What do you get?

• Employer Obligations– Give advance written notice of the terms

for payment of premiums

• Employee Obligations– Pay on time (employer’s obligation to

maintain benefits ceases if premium is more than 30 days late)

What Do You Get?

• No retaliation

–Dear John letter

–Bad Bertha vs. Happy Bob

How Do You Comply?

• Poster

• Policy

• Miranda Rights

FMLA

Poster

How Do You Comply?• Policy considerations

–The 12 month period–Substitution of paid time off for

unpaid FMLA leave–Dove-tailing with other leaves,

state leave laws & the ADA reasonable accommodation requirement

–Moonlighting on FMLA … Yes or No? (New Jersey FMLA problem)

DOL Form

WH–381

How Do You Comply?

• Medical Certification

–15 calendar days to return it to employer

DOL Form

WH–380

How Do You Comply?

• You have a reasonable, good faith doubt regarding the medical certification

–Second opinions

–Third opinions

How Do You Comply?

• Just call the employee’s doctor?

NO!!!

How Do You Comply?

• BUY A SWIVEL CHAIR

How Do You Comply?

• ADA Notes

• FMLA Medical Certification

• WC Forms

• STD Forms

How Do You Comply?

• How often can the employer demand a new note?

– 30 days– Less than 30 days only if:

– Changed circumstances– Doubt as to stated reason– Employee requests an extension

(when leave is intermittent)

How Do You Comply?

• Return to work notes

–No second / third opinions

What Happens If We Don’t Get It Right?

• Hope no one notices…

…for 2 to 3 years

What Happens If We Don’t Get It Right?

• DOL

• Lawsuit

What Happens If We Don’t Get It Right?

• Back-pay and benefits

• Reinstatement

(possible front pay)

• Liquidated damages

• Attorney’s Fees

Don’t Forget … the ADA

• Compliance with the FMLA may not be enough …

– An extension of leave may be a reasonable accommodation under the ADA

…But how long of an extension?

Don’t Forget … the ADA

…Days?

…Weeks?

…Months?

Don’t Forget … the ADA

• Indefinite? No!

• Employee must request an accommodation / extension of leave

• Extension must be reasonable under the circumstances

• Extension must not pose an undue burden on the employer

Other Leave Laws

Uniformed Services Employment and

Reemployment Rights Act

USERRA

What is it?

• Federal law providing reemployment rights for veterans and members of the National Guard and Reserve following qualifying military service (clarifies and strengthens the Veterans' Reemployment Rights (VRR) Statute )

• Prohibits discrimination against any person on the basis of that person’s past military service, current military obligations or intent to join the uniformed services

Who Is Eligible?

• “Service in the uniformed services”, including:– Active duty– Active duty for training– Inactive duty training– Full-time National Guard Duty– Absence from work for examination to determine fitness

for duty– Funeral honors duty performed by National Guard or

reserve members– National Disaster Medical System (”NDMS”) employees

(part of the Dept. of Homeland Security)– Emergency Preparedness and Response Directorate

employees (FEMA)

Who Is Eligible?

• “Uniformed services” consists of:– Army, Navy, Marine Corps, Air Force or

Coast Guard– Reserves for each of the above– Army National Guard or Air National Guard– Commissioned Corps of the Public Health

Service– Any other category of persons designated

by the President in time of war or emergency

What Do You Get?

• Expands the cumulative length of time that an individual may be absent from work for uniformed services duty and retain reemployment rights

• Retention of seniority

• Option to continue health coverage

• Pension benefits

• Modifies the FMLA eligibility criteria

What Do You Get?• Reemployment Rights

– Priority of reemployment determined by length of service

• Less than 91 days– Same position employee would have been

in if employment was continuous

• More than 90 days– Same position employee would have been

in if employment was continuous or a position of like seniority, status and pay

What Do You Get?• Reemployment Rights

– What if the employee incurs or aggravates a disability during service and is no longer qualified to perform the essential functions of the original position?

• Employee is entitled to be placed in a position that is equivalent in seniority, status and pay, the duties of which the employee is qualified to perform or would become qualified to perform with reasonable efforts by the employer.

What Do You Get?

• Seniority, etc.

– Retention of seniority and benefits associated with it as of the date of commencement of service

– Plus the additional seniority, rights and benefits the employee would have attained if he/she had remained continuously employed

– Such other rights and benefits as are provided to other employees with similar seniority, status and pay who are on another type of leave

What Do You Get?

• Health Benefits

– Employee may elect to continue health benefits

• may be required to pay to the same extent as other employees on leaves of absence are required to pay

What Do You Get?

• Pension Benefits

– Employee treated as having no break in service– Service considered for vesting and benefit accrual

purposes– Employer must continue contributions to the

same extent as the allocation occurs for other employees

– Employee entitled to accrued benefits from employee contributions to the extent the employee repays the employee contributions

What Do You Get?

• Modification of FMLA eligibility criteria

– Which ones?• 12 months of employment • 1250 in the 12 months prior to leave

– Modified by treating the employee as if he or she remained continuously employed

USERRA

POSTER

Parental Leave Laws

• Time off for parents:

– to participate in school activities directly related to the child’s academic advancement, including attendance at school conferences and activities;

– to accompany the child to routine medical or dental appointments;

– to respond to a medical emergency involving the child;

• Also may allow for use of personal sick leave benefits for absences due to an illness of or injury to the employee's child (VT, MN, RI)

Pregnancy Leave Laws

• Specifically gives pregnant employees the right to take a leave of absence for a reasonable period of time.

• The employer does not have to pay the employee during this time.

• Employers can require any employee who plans to take a pregnancy leave to give the employer reasonable notice of the date the leave will start and how long it is expected to last.

• Generally cannot force a pregnant employee to go on pregnancy family medical leave

(CA)

The End